FURGESON, District Judge.
This day the court considered Petitioner's Motion for Stay of Execution. For the following reasons, the court grants this Motion.
Clarence Allen Lackey's claim is an unusual one and comes to this court in an unusual posture. While the Supreme Court has refused to review three different petitions for writ of certiorari from Lackey, he did achieve something of a breakthrough on his third try, because he caught the attention of Justice Stevens. See Memorandum Respecting Denial of Certiorari, Lackey v. Texas, ___ U.S. ___, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995). With Justice Breyer in agreement, Justice Stevens urged further consideration by lower courts of Lackey's claim that his seventeen-year wait on death row constitutes a violation of the Eighth Amendment because a large portion of the wait is attributable to deliberate State action. Labeling the claim as "important," "novel" (three times), "legally complex" and with "potential for far-reaching consequences," Justice Stevens concluded that it "seems an ideal example" of a claim that would benefit from further study by state and federal courts. ___ U.S. ___, 115 S.Ct. 1421, 131 L.Ed.2d 304. This opinion was bolstered, in part, by a recent decision from the highest court in England that found persuasive a claim similar to Lackey's which was raised under the English precursor to the Eighth Amendment. See Pratt & Morgan v. The Attorney General of Jamaica, Privy Council Appeal No. 10 of 1993, 3 WLR 995, 143 NLJ 1639, 2 AC 1, 4 A11 ER 769 (1993) (en banc).
Since the Memorandum of Justice Stevens does not operate to halt the legal process, the State set April 28, 1995, as Lackey's date for execution. Lackey then filed this Petition for Writ of Habeas Corpus. In light of the unusual nature of the claim and the inherent complexity of habeas corpus death penalty
One unexpected result came from the court's delay. Since both counsel understood the court's "developing views," they were alert to breaking legal pronouncements which might address issues of importance to the court. On April 19, 1995, the day the court was set to issue its ruling, Petitioner cited the court to James v. Cain, 50 F.3d 1327 (5th Cir.1995). There, the Fifth Circuit analyzed the abuse of the writ doctrine in a habeas corpus death-penalty-stay case in light of the Barefoot standard, which asks whether the issue presented is debatable among jurists of reason.
The court had hoped that it would complete its work soon enough for a reviewing court to have at least a week, instead of a few days, to examine this matter. The hope is unrealized. Once again, a reviewing court will be faced with a life-and-death decision under daunting time pressures. This is, of course, a problem across the entire spectrum of habeas corpus death penalty litigation and one of the reasons the jurisprudence in the field has evolved in such a difficult way. Since a reviewing court will have little time for review, this court's one final goal has been to detail the following opinion with sufficient specificity so that appellate analysis can be expedited.
On July 31, 1977, in Lubbock, Texas, Diane Kumph met a violent death at the hands of a stranger, Clarence Allen Lackey. After kicking in the front door of her apartment, Lackey abducted her, raped her, severely beat her and then killed her by cutting her throat. Later the same day, he dumped her body by the side of a dirt road outside of town.
Lackey was arrested shortly after the attack. In February 1978 he was tried and convicted of capital murder. The State's evidence at trial left no room for doubt about his guilt.
1. DIRECT STATE APPEAL
Lackey has been imprisoned since his arrest in 1977 in connection with the rape and murder of Kumph. Under Texas law, Lackey's 1978 capital murder conviction was automatically appealed to the Texas Court of Criminal Appeals, which heard argument in April 1979 and, in a five-to-four decision, remanded the case to determine whether Lackey had been competent to stand trial in 1978. Lackey v. State, 638 S.W.2d 439, 459 (Tex.Crim.App.1982). On another ground, Lackey requested a rehearing, claiming that a prospective juror had been, over objection, prematurely and improperly excused. In support, he cited a Supreme Court case, Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), issued after his appeal had been filed. After the rehearing, the Court of Criminal Appeals agreed with Lackey and reversed his conviction in its entirety. Lackey v. State, 638 S.W.2d at 471-76.
In June 1989 the Court of Criminal Appeals, in a five-to-three decision, affirmed Lackey's conviction and sentence. Lackey v. State, 819 S.W.2d 111 (Tex.Crim.App.1989). The Supreme Court reversed the Fifth Circuit weeks later in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (holding unconstitutional jury instructions that allowed consideration of defendant's retardation as an aggravating factor but not as a mitigating factor). Lackey moved for a rehearing, which the Court of Criminal Appeals granted. After additional briefing, the Court of Criminal Appeals issued a second opinion, once again affirming the trial court conviction, this time in a six-to-three decision. Lackey v. State, 819 S.W.2d 111, 128-41 (Tex.Crim.App.1991). Lackey's second motion for rehearing was dismissed by the Court. He did not seek certiorari review, and his conviction became final in December 1991, more than seven years after he was sentenced to death for the second time.
2. FIRST STATE HABEAS CORPUS PETITION
Lackey was originally scheduled to be executed on July 13, 1992. He obtained two modifications of that date in order to conduct an investigation and present claims in a state habeas corpus application. In December 1992, the state district court denied a third motion to modify the execution date. Lackey filed his first state habeas corpus petition six days before his scheduled execution.
The state district court denied Lackey's requested relief the morning before his scheduled execution. That afternoon, the Texas Court of Criminal Appeals adopted the district court's findings and also denied relief. Ex parte Lackey, Writ No. 24,267-01 (Tex.Crim.App. Dec. 16, 1992), cert. denied, Lackey v. Texas, ___ U.S. ___, 113 S.Ct. 1319, 122 L.Ed.2d 705 (1993).
3. FIRST FEDERAL HABEAS CORPUS PETITION
Lackey then filed his first federal habeas corpus petition in United States District Court in Midland, Texas (Bunton, J., presiding). A stay was granted to permit briefing and an evidentiary hearing. After review, the court denied Lackey's requested relief. Lackey v. Collins, Memorandum Opinion and Order, No. MO-92-CA-181 (W.D.Tex. June 11, 1993). The Fifth Circuit affirmed the denial of Lackey's petition for writ of habeas corpus and vacated the stay of execution. Lackey v. Scott, 28 F.3d 486 (5th Cir.), reh'g denied, Lackey v. Scott, 35 F.3d 564 (5th Cir.1994), cert. denied, Lackey v. Scott, ___ U.S. ___, 115 S.Ct. 743, 130 L.Ed.2d 644 (1995).
4. SECOND STATE HABEAS CORPUS PETITION
In February 1995, the state district court set Lackey's fourth execution date. Later that month, Lackey filed a second state habeas corpus petition. The state district court and the Court of Criminal Appeals again denied relief. Ex parte Lackey, No. 18,075-B, Findings of Fact and Conclusions of Law, at 5-6 (137th Dist.Ct. Lubbock County March 1, 1995), adopted, Ex parte Lackey,
Lackey then petitioned the Supreme Court to issue a writ of certiorari to the Court of Criminal Appeals. On March 3, 1995, the Supreme Court stayed Lackey's execution in order to consider the matter. Lackey v. Texas, ___ U.S. ___, 115 S.Ct. 1274, 131 L.Ed.2d 192 (1995). Less than a month later, the Supreme Court denied the petition, Lackey v. Texas, ___ U.S. ___, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995), although Justice Stevens did issue his Memorandum Respecting the Denial of Certiorari, joined by Justice Breyer.
5. SECOND FEDERAL HABEAS CORPUS PETITION
On March 28, Lackey filed his second federal habeas corpus petition, which is the matter now before this court. The State of Texas has set Lackey's fifth execution date for April 28, 1995. In this appeal, Lackey seeks to stay the execution and asserts that, since the great part of his seventeen years on death row is attributable to the State rather than to him, the State has forfeited its right to execute him under the Eighth Amendment prohibition against cruel and unusual punishment.
The decision to issue a stay of execution is a matter within the discretion of this court. In this Circuit, a court considering a motion for stay of execution must consider four factors:
Buxton v. Collins, 925 F.2d 816, 819 (1991), cert. denied, 498 U.S. 1128, 111 S.Ct. 1095, 112 L.Ed.2d 1197 (1991). The latter three factors are referred to as the "balance of the equities," O'Bryan v. McKaskle, 729 F.2d 991, 993 (5th Cir.1984).
As to the first factor, the Petitioner must present, at a minimum, a substantial case
I. ABUSE OF THE WRIT
The State of Texas argues that Lackey's present claim should be dismissed under the abuse of the writ doctrine, which is codified in Rule 9(b) of the Rules Governing § 2254 Cases:
There is no question that the present claim represents Lackey's second federal habeas petition. As the State has met its burden of pleading abuse of the writ, the burden is on Lackey to show that his present claim is otherwise excused. McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991).
Before examining whether Lackey has met his burden, it should be observed at the outset that the use of the word "may" in Rule 9(b) is somewhat deceptive. The Supreme Court has stated that the true interpretation of the Rule is that federal courts should entertain successive petitions only in rare instances. Kuhlmann v. Wilson, 477 U.S. 436, 451, 106 S.Ct. 2616, 2625-26, 91 L.Ed.2d 364 (1986). As the subsequent discussion will show, the courts have limited discretion in identifying those rare instances.
A. Special Standard for Review
Lackey concedes that were this court to dismiss his petition as impermissibly successive or abusive, there would be no grounds for a stay. However, Lackey also argues that when considering a motion for stay, the court is not first required to settle the issue of "abuse of the writ." Rather, the court need only decide whether this issue, like all others in a motion for stay, is debatable among jurists of reason.
This court finds no decision which explicitly addresses this issue in a comprehensive way. There is no question that where a court dismisses a writ as abusive, consideration of a motion for stay is unnecessary. Delo v. Stokes, 495 U.S. 320, 321, 110 S.Ct. 1880, 1881, 109 L.Ed.2d 325 (1990) ("There are no "substantial grounds" present in this case, because respondent's fourth federal habeas petition clearly constitutes an abuse of the writ."). However, most courts adjudicating a motion to stay will simply note that the petition is abusive and deny the motion, with no discussion of whether this determination is debatable. Drew v. Collins, 5 F.3d 93 (5th Cir.1993) (denying motion for stay on "abuse of writ" grounds without noting whether determination was debatable), cert. denied, ___ U.S. ___, 114 S.Ct. 1207, 127 L.Ed.2d 555 (1994); Prejean v. Smith, 889 F.2d 1391 (5th Cir.1989) (same), cert. denied, 494 U.S. 1090, 110 S.Ct. 1836, 108 L.Ed.2d 964 (1990). The same is true for most courts considering, and granting motions to vacate. See Woodard v. Hutchins, 464 U.S. 377, 104 S.Ct. 752, 78 L.Ed.2d 541 (1984) (discussing abusiveness question without regard to whether determination was debatable among jurists of reason and granting motion to vacate); Romero v. Collins, 961 F.2d 1181 (5th Cir.1992) (same). See also Clanton v. Muncy, 845 F.2d 1238 (4th Cir.) (analyzing only nonabusive claims for "substantial grounds" in petition containing both abusive and nonabusive claims), cert. denied, 485 U.S. 1000, 108 S.Ct. 1459, 99 L.Ed.2d 690 (1988). These lines of authority at least suggest that "abuse of the writ" is a threshold issue that will preclude the finding of "substantial grounds" rather than being itself a part of the "substantial grounds" analysis.
Further, Barefoot itself suggests that "abuse of the writ" is an independent determination. 463 U.S. at 895, 103 S.Ct. at 3395 ("Even where it cannot be concluded that a petition should be dismissed under Rule 9(b), it would be proper for the district court to expedite consideration of the petition. The granting of a stay should reflect the presence of substantial grounds upon which relief might be granted."). See also JAMES S. LIEBMAN & RANDY HERTZ, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE, § 13.2d (2d ed. 1994) [hereinafter LIEBMAN & HERTZ] (noting that under Barefoot, stay is required for successive petition where "1) Rule 9(b) ... does not compel dismissal ... and 2) the petition "reflect[s] the presence of substantial grounds upon which relief might be granted.").
For these reasons, as noted in the introduction to this opinion, this court was prepared to decide the issue of abuse of the writ as a threshold matter, without consideration of whether determination of this issue was debatable among jurists of reason. However, Petitioner points to one Fifth Circuit decision which clearly takes the different approach: in the context of a motion for stay,
In light of James v. Cain, this court concludes that it need not resolve the "abuse of the writ" issue as a threshold matter. Rather, the relevant decision is whether it is "debatable among jurist of reason" that the present Petition is impermissibly abusive or successive.
B. SUCCESSIVE OR ABUSIVE PETITIONS
Two types of petitions are subject to dismissal under the abuse of the writ doctrine. LIEBAN & HERTZ, § 28.1 at 987 n. 9. The first type raises grounds which have previously been adjudicated on the merits. Such petitions are frequently referred to as "successive." The second type contains new grounds for relief. These are called abusive petitions.
(1) Successive Petitions
Certainly, the abuse of the writ doctrine is implicated here as the instant claim represents Lackey's second federal habeas petition. His Petition is either potentially successive or abusive, as defined above.
Respondent argues that Lackey's present Petition is successive. Lackey's brief to the Fifth Circuit in his first federal habeas appeal raised a claim that is similar to the argument he now presents. The question this court must then decide is whether the present Petition presents a ground for relief sufficiently similar to his previous Petition so as to constitute a successive petition. Again, this issue will be viewed through the prism of "debatable among jurists of reason."
(2) Similarity of Ground
Lackey argues that unless the ground for relief asserted in his first petition is "identical" to that asserted in his present Petition, classification of his claim as "successive" is inappropriate. Although the Supreme Court has, at times, utilized the word "identical" in analyzing this issue, Sawyer v. Whitley, ___ U.S. ___, ___, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992); Kuhlmann v. Wilson, 477 U.S. 436, 444 n. 6, 106 S.Ct. 2616, 2622 n. 6, 91 L.Ed.2d 364 (1986), it has done so in a shorthand manner to describe prior precedents. Exact identity of "ground" between the early and subsequent petition does not seem to be required. Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 1077-78, 10 L.Ed.2d 148 (1963).
As will often be the case, an early petition will raise the same claim, in broad terms, as the subsequent claim, but the later claim will then merely add new legal or factual bases of support. The better view seems to be that these new bases are not to mistaken for new grounds for the purpose of avoiding classification as a successive petition. Said the Supreme Court:
Id. at 16, 83 S.Ct. at 1077 (citations omitted).
Summarizing the development of the rule announced in Sanders, the Ninth Circuit has noted:
Molina v. Rison, 886 F.2d 1124, 1129 (1989). See also LIEBMAN & HERTZ § 28.4d at 935 n. 18 ("The analysis for whether bases of relief asserted in successive petitions are the same or different takes place at a relatively high level of generality, i.e. at the level of the `claim' or `ground' for relief and not at the more specific level of the particular legal or factual argument used to support the claim or ground."). It is also true, as the Ninth Circuit noted in Molina, that the rule is more easily stated than applied. 886 F.2d at 1128. The instant case is an excellent example of how difficult the rule can be to apply.
Fairly taken, the relevant "ground" for relief in Lackey's original petition was this: Execution after such a long time on death row constitutes cruel and unusual punishment.
At face value, the instant Petition presents the following claim for relief:
Pet. at 2. Lackey argues that the instant claim is "analytically distinct" from that
Such "distillation" is arguably provided by the Memorandum Respecting the Denial of Certiorari, ___ U.S. ___, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995), issued by Justice Stevens respecting the instant petition. The analytical framework that Justice Stevens uses is instructive, as well as his categorization of the main basis for relief and supporting arguments. For instance, Justice Stevens begins his Memorandum by phrasing the overall question Lackey presented thus: "whether executing a prisoner who has already spent some 17 years on death row violates the Eighth Amendment's prohibition against cruel and unusual punishment." Id. This phraseology is virtually identical to that expressed by Lackey in his first habeas petition.
Debatably, that which is truly "new" in Lackey's present claim is the added emphasis on "who is to blame" for the bulk of the time that he has spent on death row. Justice Stevens's Memorandum appropriately treats this issue, five paragraphs later, as a side issue:
Lackey v. Texas, ___ U.S. ___, 115 S.Ct. 1421, 131 L.Ed.2d 304. While "who is responsible" for the time Lackey has spent on death row is arguably only a support or predicate step to the ultimate conclusion that affords relief, the issue of substantial similarity is certainly one which is debatable among jurists of reason. This is especially true in light of the requirement that any doubt as to whether the two grounds are different or the same "should be resolved in favor of the applicant." Sanders, 373 U.S. at 16, 83 S.Ct. at 1077. Under the circumstances, this court concludes that Petitioner's "ground" for relief asserted here cannot, with necessary certainty, be equated with the same ground asserted in his earlier petition.
(3) Was Earlier Claim Decided "on the Merits"
The second requirement of a "successive" petition is that the earlier claim is to have been resolved "on the merits." Sanders, 373 U.S. at 17, 83 S.Ct. at 1078. The Fifth Circuit resolved the "lengthy death row stay" portion of Lackey's first habeas petition by stating:
Lackey v. Scott, 28 F.3d 486, 492 (5th Cir. 1994).
Does this discussion represent a holding "on the merits?" While the Fifth Circuit itself noted that it would not address the merits of the claim, it did so, at least in part, on the basis that granting Lackey the relief he sought would invite the retroactive application of a new rule of law as barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). This holding operates as a decision "on the merits" for the purpose of determining the "successive" status of a second habeas application. Williams v. Whitley, 994 F.2d 226, 234 n. 3 (5th Cir.),
(4) Cause and Prejudice Standard for Successive Claims
In the past, the need to distinguish between potentially successive and abusive claims was important because different "excuse" doctrines were applicable to each type of claim. Until recently, only otherwise abusive petitions could be excused by a showing of either "cause and prejudice" or "miscarriage of justice." See McCleskey, 499 U.S. at 495, 111 S.Ct. at 1470-71 (adopting "cause and prejudice" standard for abusive writs). Otherwise successive petitions, conversely, could be excused only by a showing that the "ends of justice" would be served by reconsideration of the grounds raised. Id. at 486, 111 S.Ct. at 1466. The following chart depicts this past state of the law:
BAR TO SECOND CLAIM EXCEPTION 1 EXCEPTION 2 Successive (old) Ends of justice Abusive (new) Cause and Prejudice Miscarriage of Justice
Since a different excuse standard governed potentially successive and abusive petitions, courts working under these standards identified habeas petitions as either potentially abusive or successive as the necessary prelude to an analysis of the applicable excuse exception.
But the underpinnings of this method of analysis have changed. First, "miscarriage of justice" rather than "ends of justice" became the operable excuse doctrine for otherwise successive petitions. McCleskey, 499 U.S. at 495, 111 S.Ct. at 1470-71; Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986).
BAR TO SECOND CLAIM EXCEPTION 1 EXCEPTION 2 Successive (old) Cause and Prejudice Miscarriage of Justice Abusive (new) Cause and Prejudice Miscarriage of Justice
Under this view, regardless of whether a second habeas petition is characterized as successive or abusive, courts will reach the merits of the claim on a showing of either "cause and prejudice" or "miscarriage of justice."
Although the "cause and prejudice" standard is now utilized when considering both successive and abusive petitions, it is not entirely clear that the standard carries the same meaning in each context.
Id. at 524 (emphasis added). This definition of "cause" differs from the definition stated for procedural default and abusive writ cases. There, "cause" is a justifiable reason for failing to raise the new claim earlier, such as actual ineffective assistance of counsel, or some other objective factor external to the defense which impeded counsel's efforts. McCleskey, 499 U.S. at 495, 111 S.Ct. at 1470-71.
It does seem appropriate that the definition of "cause" should differ for successive writs as compared to abusive writs, or else there would be little reason to distinguish between the two, since the application of each depends on their excuse doctrines. Certainly, it would seem that the "cause and prejudice" standard should not be applied to potentially successive claims in the same way it is applied to potentially abusive claims.
Under the circumstances, it can certainly be debated among jurists of reason whether "cause" means the same thing for both successive and abusive petitions. This fact is far from academic. Here, Lackey seeks to demonstrate "cause" via the "novelty" doctrine expressed in Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984).
(5) Miscarriage of Justice
Even where the cause and prejudice standard is not met, courts will review the merits of an otherwise successive habeas petition where dismissal would constitute a "miscarriage of justice." Sawyer, ___ U.S. at ___, 112 S.Ct. at 2518; Kuhlmann, 477 U.S. at 454, 106 S.Ct. at 2627. As traditionally construed, the "miscarriage of justice" exception embraces a very narrow class of petitioner. It is limited to petitioners with "colorable claims of actual innocence," Kuhlmann, 477 U.S. at 454, 106 S.Ct. at 2627, or at least claims of "actual innocence of the death penalty." Sawyer, ___ U.S. at ___, 112 S.Ct. at 2519. The latter term has been taken to mean a constitutional error at sentencing
The difficulty here is that the alleged constitutional error occurred outside the context of determination of guilt and sentencing. Petitioner's claim thus does not fall within traditional formulations of the "miscarriage of justice" exception. There are few theoretical underpinnings that would guide the advancement of "miscarriage of justice" into the arena of novel claims, such as the one advanced here. For this reason alone, this court concludes that these issues are debatable among jurists of reason.
II. TEAGUE V. LANE AND THE LAW OF THE CASE
The bar on retroactive application of new constitutional rules expressed in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and the "law of the case" doctrine are both further hurdles that Petitioner must overcome before a court may reach the merits of his claim. Here again, the question is whether the resolution of these issues is debatable among jurists of reason.
As to the Teague bar, this court believes there is at least arguable merit to Petitioner's contention that Teague simply should not apply to his claim. The argument is simple. Considerations of comity and finality underlie the Teague bar, which honors the good faith efforts of state courts to properly adjudicate constitutional claims on direct appeal under then-existing law. Teague, 489 U.S. at 308-10, 109 S.Ct. at 1074-75. But here, Petitioner's claim was not cognizable, or at the least, could not be raised, on direct appeal. Some commentators have argued that Teague fails to account for precisely such claims. LIEBMAN & HERTZ, § 25.4, at 748-749 ([C]ertain kinds of claims ... do not arise in theory until after the direct appeal is decided; and other kinds of claims ... cannot be raised as a practical matter until after direct appeal."). To some extent, it is precisely the length of the direct appeal process that supports Lackey's claim. For these reasons, the Teague issue is certainly subject to debate among jurists of reason.
Similarly, "debatable issues" exist with respect to the application of the "law of the case" doctrine to this claim. This discretionary doctrine "generally operates to preclude reexamination of issues decided on appeal,
III. UNDERLYING MERITS
Based on the Memorandum Respecting the Denial of Certiorari in the previous Lackey appeal by Justice Stevens, there is no question that jurists of reason would find debatable the substantive issue raised here.
This court is satisfied that the Petitioner has presented substantial grounds on which relief might be granted. Further, this court believes that the "balance of equities" favor the Petitioner. There is no question that the Petitioner is threatened with irreparable injury were this claim denied. This showing, coupled with the "substantial case" Petitioner has presented, outweighs any interest the State has in proceeding to execution in the coming week. The complicated nature of the issues presented in this Petition warrant a more reasoned deliberation than the available time frame permits. This Court therefore concludes that a stay is appropriate.
Accordingly, it is ORDERED that Petitioner's Motion for Stay of Execution is GRANTED.
It is also ORDERED that hearings on this matter will proceed on June 19, 1995.
This court prefers to use the term "substantial grounds."
However, Lackey's own characterization of the prior claim is not controlling. The prior petition speaks for itself. The petition certainly mentions proportionality, but also raises other arguments. Some of these arguments are suspiciously similar those presented here. For instance, the petition speaks in part of "`the imposition of needless pain and suffering' because of the passage of time...."
Nor does the authority cited in the first petition settle the question of what type of claim was raised. This court agrees that Coker and Thompson are proportionality cases. But Coker is also frequently cited, for example by Petitioner in the instant petition, for its discussion of evolving standards of decency.
Lackey also seeks to place himself within the miscarriage of justice exception by analogizing his claim to the class of claims exempted from the Teague retroactivity bar. Since the concerns that underlie Teague and the abuse of the writ doctrine are the same, the argument goes, so should the exceptions to each doctrine be the same. This court is not convinced by the argument that the exceptions to Teague and the miscarriage justice exception are or should be analogous. But assuming that they are, this court rejects the notion that Lackey is "ineligible" for the death penalty in the same manner as those petitioners held exempt from Teague under Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). While some petitioners may achieve a status or class that renders them ineligible for the death penalty, the "disqualifying" feature is either innate in the petitioner himself, Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (insanity), or results from the petitioner not being within a death eligible class from the outset, e.g. Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (petitioner convicted of rape not eligible for death penalty). The State argues, and this court agrees, that Lackey is like any other death row inmate who at some point had his constitutional rights violated. This fact does not give him a "status" in the same sense as those petitioners encompassed by Teague's first exception.